Parties that are obligated to pay maintenance to their former spouses upon dissolution of marriage often times may terminate their maintenance obligation if their former spouse is found to be cohabiting on a resident, continuing conjugal basis with another person. However, this is not an easy fact for an obligor of maintenance to prove in Court.

There are many factors that a Court will examine to determine whether or not cohabitation is occurring, such as the following, which were examined in the Illinois case of In re Marriage of Thornton, 373 Ill. App. 3d 200, 310 Ill. Dec. 789, 867 N.E.2d 102 (3d Dist. 2007):

(1) The length of the former spouse’s relationship with the new person;

(2) The amount of time the couple spends together;

(3) The nature of activities engaged in;

(4) The interrelation of their personal affairs;

(5) Whether they vacation together; and

(6) Whether they spend holidays together.

As one might guess, whether or not a former spouse is in fact cohabiting on a resident, continuing conjugal basis is a fact to be determined by the Judge and varies by the relevant factors of each case. It is also interesting that once a prima facie case of cohabitation has been proven by the obligor, the burden shift to the obligee, who then has to defend themselves against the obligor’s allegations and prove that they are not in fact cohabiting on a resident, continuing conjugal basis. (See In re Marriage of Sappington, 106 Ill.2d 456, 88 Ill.Dec. 61, 478 N.E.2d 376 (1985) and In re Marriage of Herrin, 634 NE.2d 1168 (Ill. App. 4 Dist., 1994)).

Given the recent national news in regards to the SCOTUS ruling overturning DOMA, it is also interesting to note that Illinois Courts have found cohabitation to exist between two people living together that are the same sex. (For more information and further reading on this issue, see In re Marriage of Weisbruch, 304 Ill. App. 3d 99, 237 Ill. Dec. 809, 710 N.E.2d 439 (2d Dist. 1999)). If you believe your spouse may meet the criteria for cohabitation under Illinois law and you are currently obligated to pay spousal support, you may want to speak with an attorney about whether or not you have enough evidence to terminate your spousal support obligation.

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